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Creepy and somewhat realistic-looking Halloween mask, check. Scary jack-o-lanterns and frightening outdoor decorations, check. Haunted house music in the background, check. Bowl of candy, check. It’s fright night and you’ve created the perfect macabre mood to make it a memorable Halloween for trick-or-treaters.

Your plan: sit outside on the front porch dressed in your Halloween costume, pretend to be a mannequin, and suddenly “come to life” to spook trick-or-treaters.

As your first group of visitors (several teenagers, a young child, and his elderly grandmother) approach your doorsteps, you perfectly execute your plan and manage to give them a good scare. While many are amused and even impressed with your elaborate Halloween setup, others seem clearly startled and upset – particularly the child and his accompanying grandmother. After all, you did try your best to scare them. All in good spirit, of course. As the night goes on, however, you can’t help but wonder if you’ve gone too far. Is it possible to inflict a nervous shock so severe to the point of being held legally liable?

It’s unlikely, so you can relax. Canadian courts have distinguished between a minor and temporary psychological upset and a psychological disturbance that amounts to a compensable personal injury. Disgust, upset, anxiety, or a mere agitation will rarely rise to that level of injury. An actionable injury will likely be serious and prolonged, and must go beyond the ordinary annoyances, anxieties, and fears that people routinely encounter. Courts have even added that the law does not provide compensation for psychological injury unless it is a recognizable psychiatric illness.

Further, to be found liable, it must be shown that the risk of harm was reasonably foreseeable. The risk must be real, one which would occur to the mind of a reasonable person and which would not be dismissed as far-fetched. When assessing the probable risk of harm, one must look at what a person of ordinary fortitude would suffer. In other words, extreme or unusual reactions to acts of negligence are possible but not reasonably foreseeable.

Now suppose that, although it was never your intention to scare the young child and his grandmother, one of them begins to suffer from recurring nightmares about your mask and starts to scream at the mere sight of a jack-o-lantern. They’ve been clinically diagnosed with a psychological illness which requires long-term therapy. Could you be held responsible for the harm suffered?

Once it is established that a mental injury would occur in a person of ordinary fortitude, a defendant may be held liable even for damages that prove to be more serious than expected. Further, a person’s injuries may be reasonably foreseeable where it is known by the defendant that they are of less than ordinary fortitude (e.g. actual knowledge of the person’s particular sensitivities).

With that in mind, Azzi Law wishes you a safe and happy Halloween!